Tomorrow morning at 9:30, in the U.S. Fourth Circuit Court of Appeals, the Obama administration's appeal of Judge Henry Hudson's ruling that the federal health care law is unconstitutional will be heard. As we have been at every step of the way, from the motion to dismiss to Judge Hudson's decision, we will be there to cover it and will have video of Attorney General Ken Cuccinelli's entire post hearing news conference. We are the only Internet site has posted the entirety of each of his ObamaCare news conferences. Be sure to check back here for coverage of this history-making lawsuit which will play a significant role in the direction of our country.
Within the last few minutes, in a reprise of its stunning vote to regulate abortion centers in the waning days of the General Assembly's regular session, the Virginia Senate approved by a vote of 21-20 Governor McDonnell's amendment to HB 2434 that bans taxpayer funding of elective abortion coverage when (or if) the state run health care insurance exchanges begin in 2014 as mandated by the federal health care law. Throughout the day it looked like the amendments would die in the Senate, perhaps by a 21-19 margin. But, in a vote that came up in the latter stages of an all day and night annual "Veto Session," all 18 Republican senators and pro-life Democrats Chuck Colgan and Phillip Puckett voted to add the amendments. The other 20 Democrats voted to reject them leaving the tie-breaking vote with Lt. Governor Bill Bolling who, as he did in February, voted in the affirmative. Early on in the intense debate, pro-abortion Senator John Edwards tried to have the amendments ruled non-germane, but Lt. Governor Bolling, who presides over the Senate, ruled that they were. His ruling was upheld on a 21-19 vote. Earlier in the day, the House of Delegates concurred with Governor McDonnell with about 60 votes. Thanks to all who contacted their senators for this incredible win for Life. Because of your dedication and commitment, we have won significant pro-life legislative victories in Virginia during the past three months. More on this story to come.
Speaking of Virginia's lawsuit against ObamaCare: Remember all the liberal hysteria regarding all the money Attorney General Ken Cuccinelli supposedly is spending on the constitutional challenge to the federal health care law (Richmond Times-Dispatch) — as if government spending has ever been an issue with liberals? Never mind that he is defending Virginia law (the Virginia Health Care Freedom Act), which it is his duty to do. Where are the howls of disgust by the same people now that the Obama Justice Department refuses to agree (Times-Dispatch) with the Attorney General for an expedited appeal to the U.S. Supreme Court (Washington Examiner)? Without such an appeal, we're talking at least two cases in U.S. Courts of Appeals, at least another year or more of legal work and court proceedings, endless briefs and motions, travel from Washington to Richmond and Atlanta, meetings, hundreds of hours of federal government employee time and who knows what else it takes to try a case these days — only this will be two cases simultaneously, not to mention any further cases that are filed in federal district courts by other states or aggrieved parties. It's no exaggeration to say the cost could be in the millions. That's a lot more than the $350 it cost the Commonwealth to file its case in Federal District Court for the Eastern District of Virginia . . . but a lot less than the $1.1 billion it will cost Virginia to implement ObamaCare. The pricelessness of the hypocrisy is passed only by the reality of the true costs.
In a bit of breaking news, the Fourth U.S. Circuit Court of Appeals agreed to an expedited hearing of the federal government's appeal of Virginia's legal challenge to the federal health care law. Here's Attorney General Ken Cuccinelli's news release:
RICHMOND (January 26, 2011) — The U.S. Court of Appeals for the Fourth Circuit today granted a joint motion from Attorney General Ken Cuccinelli and the federal government to expedite the hearing of Virginia’s suit against the federal health care law. The case is tentatively scheduled for hearing sometime between May 10 and 13. This replaces a briefing order previously issued by the court.
"Right now, there is a great deal of uncertainty for states, individuals, and businesses. Major decisions are already being made and money is already being spent to comply with a law that may not be around two years from now. We need this suit resolved as quickly as possible, for the good of our citizens and our economy," said Cuccinelli.
Cuccinelli is still weighing whether or not to request that the U.S. Supreme Court take the case directly and skip the Fourth Circuit altogether.
The court ordered the following briefing schedule:
Opening briefs due February 28
Response briefs due March 28
Reply briefs due April 11
More information on the health care lawsuit can be found at the attorney general's health care archive, here. Virginia won round one late last year when Federal Judge Henry Hudson of the Eastern District of Virginia declared the statute unconstitutional. The Obama administration's appeal is of that decision.
Attorney General Ken Cuccinelli just sent this e-mail to supporters:
As I told you earlier today, Virginia won the first round of the constitutional fight over the federal health care law. I also told you I'd get back to you with more details later in the day, and I'm keeping my promise.
I will tell you up front that I will also go into still more detail later this week — when time allows.
Arguments and Outcomes
There were two basic arguments in this case.
First, Virginia argued that the individual mandate was beyond the power of Congress and the President to impose under the Constitution. Specifically, Congress claimed that their regulatory power under the Commerce Clause allowed them to order you to buy their government-approved health insurance, even if you decide not to buy health insurance.
The judge ruled that the federal government does not have the power to compel you to buy health insurance as part of its attempt to regulate the entire field of health care and health insurance. Thus, Virginia won this argument.
Second, the federal government advanced a 'fallback' argument in case it lost on its commerce clause argument. The feds' fallback argument was that the financial penalty you have to pay if you don't buy the government mandated health insurance is a tax.
This may sound like an odd argument from a political standpoint — usually they say everything is NOT a tax (in fact, they argued the penalty was not a tax while they were trying to get the bill passed); however, they changed position after the bill became law to try and save the bill. What they were trying to do was to get the courts to agree that because the penalty would presumably raise some revenue, it was therefore a 'tax' under the taxing and spending for the General Welfare Clause of the Constitution.
No judge in the country has bought this argument, and Judge Hudson was no exception. He ruled that the taxing power of Congress does not save the bill, because the penalty for not buying the mandated health insurance is not a tax.
The federal government only had to win on either of these two arguments, while Virginia needed to win both to prevail, and we won both!
Certainly the federal government will appeal their loss in the district court to the 4th circuit court of appeals within the next 30 days. And whichever side loses in the 4th circuit will certainly appeal to the Supreme Court. And no one has any serious doubts that ultimately the constitutionality of the individual mandate will be decided by the U.S. Supreme Court.
That could take approximately (very rough approximation) two years. We are discussing with the Department of Justice accelerating the case, and those discussions have been very cordial thus far. More on that later.
Today is a great day for the Constitution. Today the Constitution has been protected from the federal government, and remember, an important reason for the constitution in the first place was to limit the power of the federal government.
Today is also a day of a small degree of vindication. When we first filed suit, the screeching of the liberals was deafening. Everything from accusing us of playing politics instead of practicing law, to filing what they called a 'frivolous' lawsuit.
I want you to know, that our team makes decisions based on the Constitution and the laws. Period. We deal with the consequences of our decisions separately, but first and foremost we have been and will continue to be true to the Constitution and laws of the United States and Virginia, regardless of whether it's easy or hard in any particular case.
Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, ruled within the last few minutes that the individual mandate provision of the new federal health care law is unconstitutional. News leaked out at noon, when Attorney General Ken Cuccinelli sent a tweet that claimed:
HC ruling is in. Va won this round.
He followed that up with an e-mail about 17 minutes later:
Today, a federal judge in Richmond ruled the individual mandate of the federal health care law UNCONSTITUTIONAL!
In other words — we won!
This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution.
I am still fully digesting the court's ruling, so I'll get back to you again later with more details, but I wanted you to hear the good news right away.
Thank so many of you for your support to become the Attorney General of Virginia, and your support since then. Today is a day to celebrate those same first principles that our founding fathers articulated over 200 years ago.
We are proud to defend their work and the same first principles today in the 21st century.
Stay tuned — and thank you for your support.
To Judge Hudson's decision. Here are pertinent quotes from his 42 page opinion (see here):
Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I. ...
The absence of a constitutionally viable exercise of this enumerated power is fatal to the accompanying sanction for noncompliance. ...
A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimal Essential Coverage Provision would invite unbridled exercise of federal police powers (emphasis added). At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate.
Article 1, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or to the people.
On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act — specifically the Minimum Essential Coverage Provision — exceeds the constitutional boundaries of congressional power.
Judge Hudson, however, did not do two things the Commonwealth asked: He did not place an injunction on the law, stating the individual mandate won't take affect for three more years while acknowledging his decision will be appealed. However, he cited precedent stating that "declaratory judgment is the functional equivalent of an injunction," and noted the Commonwealth conceded the administration is duty-bound to honor the decision.
He also did not invalidate the entire law, saying there were more than 400 provisions unrelated to the specific provision challenged. That, however, gives an idea as to how obnoxiously crafted the legislation was.